I’ve written more than once about the private practitioner’s least favorite task. Now, new federal worker protection laws are making terminations even more difficult, even when they’re justified; however, that’s still no excuse for keeping an employee that should be replaced.
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Once you make the decision to replace an employee, be sure that you have legitimate grounds and assemble as much documentation as you can. Record all terminable transgressions in the employee’s permanent record and document all verbal and written warnings. This is essential; you must be prepared to prove that your reasons for termination were legal.
Former employees will sometimes charge that any of a number of their civil rights were violated. For example, federal law prohibits you from firing anyone because of race, gender, national origin, disability, religion, or age – if the employee is over 40. You cannot fire a woman because she is pregnant or recently gave birth. Other illegal reasons include assertion of antidiscrimination rights, refusing to take a lie detector test, and reporting Occupational Safety and Health Administration violations.
You also can’t terminate someone for refusing to commit an illegal act – such as filing false insurance claims – or for exercising a legal right – such as voting or participating in a political demonstration.
While you cannot fire an alcohol abuser unless he or she is caught drinking at work, many forms of illegal drug use are legitimate causes for termination. Other laws may apply, depending on where you live. When in doubt, contact your attorney, state labor department, or fair employment office.
If a fired employee alleges that he or she was fired for any of these illegal reasons and you do not have convincing documentation to counter the charge, you may find yourself defending your actions in court. If you anticipate such problems, you can ask the employee to sign a waiver of future litigation in exchange for a concession from you – such as extra severance pay or a promise not to contest an unemployment application. Also, consider adding employment practices liability insurance – which I covered in detail a few months ago – to your umbrella policy, since lawsuits are always a possibility, despite all efforts to prevent them.
Once you have all your legal ducks in a row, don’t procrastinate. Get it over with first thing on Monday morning. If you wait until Friday afternoon, you will worry about the dreaded task all week long, and the fired employee will stew about it all weekend. Ask your manager or another trusted employee to be present to reduce the risk of subsequent disputes over what was discussed.
I’ve been asked to share exactly what I say; so for what it’s worth, here it is: “We have called you in to discuss a difficult issue. You know that we have not been happy with your performance. We are still not happy with it, despite all the discussions we have had, and we feel that you can do better elsewhere. So today we will part company, and I wish you the best of luck in your future endeavors. Here is your severance check. I hope there are no hard feelings.”
Dr. Joseph S. Eastern
There will, of course, be hard feelings, despite all your “hopes,” but that cannot be helped. The point is to be quick, firm, and decisive. Get it over with and allow everyone to move on. Make it clear, when necessary, that the decision has already been made, so arguing or pleading will change nothing.
Be sure to get all your office keys back – or change the locks if you cannot. Back up all important computer files and change all your passwords. Most employees know more of them than you would ever suspect.
Finally, call the staff together and explain everything. They should hear it from you, not some distorted version via the rumor mill. You don’t have to divulge every detail, but do explain how the termination will affect everyone else. Responsibilities will need to be shifted until a replacement can be hired, and all employees should understand that.
If you are asked in the future to give a reference or write a letter of recommendation for the terminated employee, be sure that everything you say is truthful and well documented.
Dr. Eastern practices dermatology and dermatologic surgery in Belleville, N.J. He is the author of numerous articles and textbook chapters, and is a longtime monthly columnist for Dermatology News. Write to him at [email protected].
